Figure 1: REP Diagram
The reasonable expectation of privacy is a defense used against unreasonable search by law enforcement officers. One can demonstrate their reasonable expectation of privacy in a case where their property is seized or searched. The constitution gives law enforcement officers the power to occasionally use force, seize persons and their belongings, perform searches, make arrests, and conduct investigations. However, the law also dictates the boundaries upon which this power is exercised.
According to the diagram, if a person does not have a reasonable expectation of privacy, the fourth amendment fails to apply to their case. This implies that the individual is subject to state action with or without warrant. State officers have the power to act within the law by making arrest, conduct investigations and perform searches on the individual with no reasonable expectation of privacy. When an individual deliberately fails to protect himself from public exposure while in his or her house and office, there is no reasonable expectation of privacy. This implies that if one deliberately exposes himself or herself and any sensitive information to the public, they do not expect any form of privacy. As a result, protection received by the fourth amendment fails to apply. However, the provisions of the fourth amendment apply in cases where there is a reasonable expectation of privacy. Sensitive information such as bank records, are usually exposed to third parties knowingly by individuals. Therefore, a person cannot possess reasonable expectation of privacy in such cases where information is exposed to a third party.
The fourth amendment protects one from state action if the person has a reasonable expectation of privacy. However, this is used as a defense against state action. Such an individual my only be subjected to state action upon an issuance of a warrant. Without a warrant, law enforcement officers may not make arrest, conduct investigation, or perform a search on the person or the person’s properties. A person may have a reasonable expectation of privacy but still fail to defend him or herself in court. There are exceptions that even without a warrant, state action remains relevant and valid. A person may seek to preserve his privacy even when exposed to the public. In such cases, the provisions of the fourth amendment apply and may be used as a defense against unreasonable arrest or search. Persons possess reasonable expectation of privacy in their offices, homes, personal properties, cars, and bodies.
In order for a law enforcement officer to be given a search warrant, substantial evidence to support the probability that crime will be found in a particular place(s) has to be provided by the officer. Exceptions to warrant requirement occurs in cases where issuance of warrant will interfere with enforcement of the law. For instance, if a law enforcement officer clearly sees drug contraband at an airport terminal, there is no need for a warrant to be issued first before the contraband is confiscated. Warrantless searches are therefore conducted in regulated industries by administrative officers. Such industries include the food processing and service industry, mining industry, and transport industry. In addition, most state and federal laws provide for warrantless search and arrest in cases of drug testing. The need to secure the public outweighs the need to secure an individual’s or individuals’ privacy.
Bloom, R. M. (2003). Searches, Seizures, and Warrants: A Reference Guide to the United States Constitution. Westport, Conn.: Praeger.
Greenhalgh, W. W. (2003). The Fourth Amendment Handbook: A Chronological Survey of Supreme Court Decisions. Chicago, Ill.: Criminal Justice Section, American Bar Association.